Is Carbon Dioxide a Pollutant? (11/06)

The following column by AGI/AIPG Geoscience & Public Policy Intern Jessica C. Rowland is reprinted from the November 2006 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

Despite objections from the Bush administration, the Supreme Court recently entered the debate over global warming. On June 26, the court accepted a petition to hear the case Massachusetts v. Environmental Protection Agency. The case was filed by Massachusetts Attorney General Tom Reilly, together with a coalition of 12 states, 13 environmental groups, New York City, Baltimore and American Samoa. The petitioners argue that the Environmental Protection Agency (EPA) should classify carbon dioxide as a pollutant under the Clean Air Act, and have legal authority to regulate it and other heat-trapping greenhouse gases emitted from motor vehicles. The case, which will be argued this fall and likely decided by next spring, could put new pressure on the Administration and Congress to finally act on climate change.

The Clean Air Act (CAA), enacted in 1970, established a comprehensive program for controlling and improving the nation's air quality through state and federal regulation. One of the main goals of the CAA is to attain concentrations of certain air pollutants at which there are no adverse effects on human health or the environment. In sum, the act emphasizes regulatory action to prevent harm to public health, welfare and the environment.

Massachusetts v. Environmental Protection Agency stems from an earlier lawsuit filed by Massachusetts, Connecticut and Maine in June 2003, which marked the first time that states sued the federal government over global warming issues. This earlier case argued that EPA was violating its mandatory duty by failing to regulate carbon dioxide. The lawsuit relied on a 1998 statement from EPA's counsel Jonathan Cannon establishing that carbon dioxide is an air pollutant subject to regulation under the act. A few months after this lawsuit was filed, EPA reversed its position in a memo from EPA's current counsel Robert Fabricant. Fabricant determined that carbon dioxide is not a pollutant, based on the fact that "the CAA does not authorize regulation to address global climate change." Lower courts have upheld this position on the grounds that environmental groups and states have failed to show specific injury from climate change.

Carbon dioxide emissions, which are intensifying global warming, are generated in elevated quantities by motor vehicles and industrial operations powered by fossil fuels. According to the Energy Information Administration, passenger cars, trucks and sport utility vehicles account for more than 20 percent of the nation's greenhouse gas emissions. Although Massachusetts v. Environmental Protection Agency doesn't specifically involve carbon releases from power plants, a court decision declaring carbon dioxide a harmful pollutant would make it difficult for EPA to avoid regulating power plants, which account for 40 percent of U.S. carbon dioxide emissions.

Two primary questions will be explored by the Supreme Court in considering this case. The first is whether the EPA Administrator has the authority to regulate greenhouse gases associated with climate change. The second issue regards whether, if EPA does have such authority, the agency is obligated to issue emission standards for motor vehicles.

The outcome of this case will likely rely upon how the court interprets the statutory definition of a pollutant and EPA's modified criteria for carbon dioxide. The CAA broadly defines the term 'air pollutant' as "any air pollution agent…which is emitted into or otherwise enters the ambient air." There are six defined "criteria" pollutants (ground-level ozone, carbon monoxide, particulate matter, nitrous oxides, sulfur dioxide and lead) and 189 other hazardous air pollutants that are regulated by EPA.

The petitioners (Massachusetts et al) argue that carbon dioxide is a pollutant and that regulation of emissions is within the scope of EPA's authority. According to the act, EPA must prescribe standards for air pollutants in motor vehicle emissions that cause harm to public health or welfare. This provision includes the effects of pollutants on weather and climate. Emissions of carbon dioxide and consequent global warming, the petitioners argue, will no doubt "endanger public health and welfare" and cause "adverse environmental effects" due to rising temperatures, more extreme weather events and increased risks of some insect-borne diseases. Hence, carbon dioxide should be listed as a criteria pollutant and EPA should determine appropriate air quality standards.

The respondents (EPA et al) argue that EPA lacks authority to regulate carbon dioxide and other greenhouse gases. The CAA authorizes research and technology development related to global climate change, but contains no indication that Congress intended EPA to administer a regulatory climate program. The administration maintains that fossil fuel-derived carbon dioxide is not a dangerous pollutant, and that it is impossible to create national air quality standards for the greenhouse gas. Because carbon dioxide concentrations are nearly uniform in Earth's atmosphere, the local regulatory focus of the CAA is not the appropriate structure through which to deal with this global problem.

Depending on the outcome of the case, regulation of greenhouse gas emissions could become the duty of the states or may rest on the determination of Congress. State and local officials, disappointed with the administration's voluntary emissions reduction programs, have already begun creating international alliances and adopting policies that aim to stem greenhouse gas levels. Bill Clinton is leading an effort with 22 large cities to reduce greenhouse gas emissions and enhance energy conservation, and California Governor Arnold Schwarzenegger and British Prime Minister Tony Blair have signed an agreement that will lay the groundwork for trans-Atlantic carbon trading. States are working to set-up cap-and-trade programs for carbon dioxide and other greenhouse gases, and are demanding that utilities use renewable sources to generate energy. This array of state actions will create variable new regulations with which businesses must contend, and may lead to increased litigation between states and utilities and possible harm to the U.S. economy. Finally, although Congress has shown relatively little interest in the regulation of greenhouse gas emissions, a series of climate change hearings held this past July may mark the beginning of a movement toward the development of national policy - as opposed to state-bystate measures - that will address the issue of global warming.

This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.

Please send any comments or requests for information to the AGI Government Affairs Program.

Posted December 3, 2007

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